The Right to a Representative, Plus Management & Supervision

This February, Kirk Strang presented a legal update at the WASDA New Superintendents Academy, with a focus on practitioner HR issues. During his presentation, he covered five major topics:

• Part 1: The Teacher Contract
• Part 2: The Right to a Representative, Management & Supervision
• Part 3: Use of Administrative Leave, and Protected Activity
• Part 4: Employee Speech, as well as Staff & Religious Accommodations
• Part 5: Employees & Technology

In Part 1 of the series, we tackled the teacher contract — specifically, things to watch for, or maybe even change.

In Part 2 of the series, our attention turns to the following practitioner HR issues …

1. The right to a representative
2. Management and supervision, with a focus on:
   1. Investigating employee conduct/misconduct
   2. The “desk file”

The purpose of this series is to dig into these topics in an effort to help Wisconsin superintendents and districts be up to date, and better prepared, for these practitioner HR issues.

Let’s get started with Part 2 …

The Right to a Representative

When an individual employee is required to meet with management and the meeting could lead to discipline or discharge, the employee may have a right to be represented. This doctrine has rules, however, including:

1. If the discussion could not reasonably lead to the employee’s discipline or discharge, a representative is not required.
2. The right to a representative includes the right to a fellow employee or union representative.
3. The right to a representative does not include the right to have an attorney appear on the employee’s behalf.
4. The right to a representative does not entail the right to a particular representative.

Management & Supervision

INVESTIGATING EMPLOYEE CONDUCT/MISCONDUCT

1. Investigation Records. 

   When an investigation is not completed, the school district is not required to turn over information that has been gathered or records that have been prepared in the investigation. Indeed, in some cases, it can be viewed as prejudicial to the rights of the accused or defamatory to do so.

   A completed investigation concerning an employee generally is a public record that has to be disclosed to requesters. 
   NOTE: A subpoena and a public record request are two different things.

   1. Use your computer to begin compiling your notes and information. This allows you to modify your investigation materials as you develop them and makes various stages of your report a “draft” for purposes of the public records law.
   2. Do not use disparate materials to investigate. If your investigation materials are on different kinds of paper for different meetings/interviews, sometimes handwritten and sometimes typed, on the back of a napkin, etc., you will appear to be disorganized and disheveled, even if the substance of your investigation is defensible.
   3. Avoid making any record of your mental impressions until your investigation is over. Just facts. No comments.
2. Investigation order/protocol:
   1. Consider two interviews of the subject: the opening of the investigation and the closer.
   2. Get as much as you can from other resources before speaking with people.
   3. Get as much as you can from other people before you speak with the subject.
   4. Have the subject provide a broad, narrative account before asking specific questions.
   5. Investigations must be thorough, or they will not stand up and — when they do not — the investigator may fall as well.

INVESTIGATING EMPLOYEE CONDUCT/MISCONDUCT — THE INTERVIEW

1. Making an Audio Recording:
   1. Consider recording the meeting. 
   2. Do not permit other recording and take steps to prevent it (e.g., with a cell phone). 
   3. Recording ensures accuracy and can discourage mischief.
2. Determine whether a Garrity warning will be required.
   1. A Garrity warning may be required when the employee’s alleged misconduct also might constitute a crime.
   2. Garrity is meant to prevent forcing a public employee to choose between providing truthful responses to a public employer’s questions and incriminating himself/herself under criminal law.
   3. The tradeoff that Garrity produces is that the information (and the “fruits” of the information) that an employee provides under a Garrity warning cannot be used against them in a criminal proceeding. While this guarantee falls short of prohibiting disclosure to law enforcement officials, it effectively does exactly that (school officials should advise law enforcement officers of situations where a Garrity warning has been given).
3. Have a series of questions prepared, with alternative questions that should be asked depending on the answers that are given.
4. Do not treat the questions that you (or your counsel) have prepared as a script, do not present them as though you don’t care about related issues, and do not be apologetic about having to ask questions to find out what’s going on.
5. Ask all questions, even if an employee refuses to answer.
6. Make it clear that truthful answers are required and that lying in an investigation is its own offense.
7. Be deliberate about representative’s interference with interviews and make a record of obstructing tactics. If the representative interferes with the investigation by:
   1. Asking clarifying questions that suggest an answer to the employee under investigation: Carefully walk through what happened, illustrate on the record how it could suggest an effort to coach the witness, and encourage the representative to cease and desist.
   2. Interviewing the interviewer: Politely inform the representative that we are here to question the employee, not the administrator.
   3. Instructing the witness not to answer: Review what occurred, let them know that it is their responsibility to answer, tell them that they are being directed to answer, and that they will be found insubordinate and may be sanctioned separately for refusing to answer. Now that I’ve told you this, are you still refusing to answer my questions? 
      NOTE: Do this with every question where the employee refuses to answer.

THE “DESK FILE”: IN GENERAL

You generally can have a file that isn’t part of the regular personnel file (i.e., it is secret) to track specific performance issues or personnel problems, as long as its purpose, use, and disposition is proper.

• This procedure applies primarily to behavior that is problematic only if it is frequent and/or represents an established pattern of behavior over time (e.g., tardiness).
• You can’t have such a file if your district has passed rules about personnel files or other recordkeeping practices that prohibit this practice. Your board policies, handbooks, and contracts shouldn’t inadvertently restrict your ability to do this.
• Usually, this is a principal’s concern. However, superintendents may need to track certain performance issues themselves and — even if they don’t — need to make sure that principals don’t create records that they shouldn’t.
• An employee has the right to see their own personnel file up to two times every calendar year. Wis. Stat. § 103.13(2). This means that the proverbial “desk file” has to have a temporal property to it, because an employee can use the fact that materials that belong in the personnel file were not there in any number of ways tactically.

THE “DESK FILE”: CONTENT

1. Identify the issue/behavior and determine whether it should be monitored.
2. If it should be monitored, make a specific notation (including date, time, place, and specific observations).
3. Continue to make specific notations as events/behavior warrants.
4. At some point, you will have to make a call: Is the behavior significant enough to warrant further action or were those situations aberrations that require no further monitoring?
   1. If no further monitoring is required, the file materials can be destroyed.
   2. If the matter does require further action, the file materials can be used to produce a specific, capable personnel document to share with the employee and place in the personnel file.

This brings us to the end of Part 2 of the series. In Part 3, our deep dive into addressing practitioner HR issues continues with a focus on use of administrative leave, as well as protected activity.

Until then, here are a couple of articles that may be of interest:

• Creating & Posting School Board Meeting Agendas & Open Meetings Law, Part 1: Basic Rules of Compliance
• School Law Update, Part 1: New Wisconsin Laws Enacted & Proposed